June 02, 2008

Alito on Baseball and Antitrust

Supreme Court Justice Samuel Alito Jr. is easily the Court's biggest baseball fan. So when the Supreme Court Historical Society asked him to present this year's lecture in advance of its annual meeting today, his topic almost seemed obvious: the Court's 1922 decision Federal Baseball Club v. National League, which said the Sherman Antitrust Act did not apply to professional baseball games.

Speaking in the Court chamber to the society's members, Alito said that this time of year he feels like "the kid who's gotten through some of his exams," because all the justices' opinion-writing was supposed to be done by the end of May. (From here on through the end of June it's a matter of getting the decisions ready for issuance.)

On the subject of baseball and antitrust, Alito said the 1922 decision has been widely misinterpreted as granting baseball an antitrust exemption, which is "not exactly correct." Alito took the audience through the history of the case and of baseball, concluding that the Supreme Court had affirmed the view of the U.S. Court of Appeals for the D.C. Circuit that baseball games were not examples of interstate commerce. Even though players cross state lines to play, the games themselves are "state affairs" from beginning to end and as such are not covered by the Sherman Act. Alito's point apparently was that the Court had not specifically exempted baseball from antitrust laws, but that it had defined the sport in such a way that it, like other intrastate events, was not covered.

Alito said the Supreme Court's decision has been pilloried by scholars and judges alike in the decades since it was issued. More recently, he said, some commentators have been "less harsh," fitting it into a more modest view of the scope of the Constitution's commerce clause. Alito indicated that he is in the camp that views the case more kindly.

No question-and-answer period followed the lecture. But society president Frank Jones, of counsel at Jones, Cork & Miller in Macon, Ga., used the power of the chair to ask the justice one thing: How will the Atlanta Braves do this year? It was a challenging question for Alito, a diehard Philadelphia Phillies fan. Diplomatically, Alito said he hoped the Braves and Phillies would make it to the National League playoffs together, and then that "the Phillies will win."